The claimant filed for disability insurance benefits on September 22,
1972, and alleged that he became unable to work on March 14, 1972, because
of respiratory and blood disorders. The Social Security Administration
denied his application on January 14, 1974. The claimant filed another
application on March 28, 1975, and again alleged that he became unable to
work on March 14, 1972, because of the same impairments as those alleged
in his prior application. A 1975 report from one physician showed that the
claimant was permanently disabled because of a lung condition. A report
from another physician showed that the claimant was totally disabled
because of a blood disorder, but it did not contain any clinical or
laboratory findings to support this conclusion or provide the basis for
the diagnosis. A medical advisor who evaluated the claimant's pulmonary
function studies concluded that the claimant could do light work. A
vocational expert, after reviewing the medical reports and listening to
the plaintiff's testimony at the hearing, concluded that the claimant
could do light work. The Social Security Administration denied the
claimant's application, but the district court reversed this decision and
found the claimant disabled as of March 1972. In reversing the district
court, the Court of Appeals held that the Social Security
Administration's decision on January 14, 1974, had become final and was
res judicata as to later applications involving the same facts and issues
existing at the time of the first decision. The Secretary's decision
refusing to reopen a prior determination and dismissing the claim on the
basis of res judicata is not reviewable by the district court. Further
held: (1) the Social Security Administration's finding that the
claimant had not become disabled since January 14, 1975, was supported by
substantial evidence; (2) conflicts in medical evidence are to be resolved
by the Social Security Administration, not the courts; (3) the Social
Security Administration may discount medical reports unsupported by any
acceptable clinical or laboratory diagnostic data or findings; and (4) the
Social Security Administration may consider the testimony of a vocational
witness, even though the witness had not interviewed the claimant and
based his conclusions on the records and the testimony presented at a
hearing.

ROSS, Circuit Judge:

Plaintiff Oscar W. Janka sought review in the district court of a final
decision by the Secretary of Health, Education and Welfare denying his
claim for disability insurance and supplemental security income benefits.
42 U.S.C. §405(g). The district
court[1] reversed the
Secretary's decision, and the Secretary brought this appeal. We reverse
the judgment of the district court.

Mr. Janka filed his first application for social security disability
benefits on September 22, 1972, alleging that he became unable to engage
in any substantial gainful activity as of March 14, 1972, because of
respiratory and blood disorders. His application was disallowed and again
denied upon reconsideration. Plaintiff then submitted a request for a
hearing. 20 C.F.R. §404.917. However, he declined to appear at the
hearing and his claim was denied on January 14, 1974, on the basis of the
evidence in the record. Plaintiff sought no further review, and the denial
of his claim on January 14, 1974, therefore became a final decision of the
Secretary. 20 C.F.R. §404.940.

On March 28, 1975, plaintiff submitted a second claim for benefits,
alleging the same impairments asserted in his original application.
Moreover, he again claimed that his disability had originated on March 14,
1972. This claim was denied, and plaintiff requested a hearing.

The hearing examiner ruled that the decision of January 14, 1974, denying
plaintiff's first application was final and res judicata as to any
disability claimed prior to that date. He also concluded that plaintiff
had failed to present any "new and material evidence" providing "good
cause" to reopen and revise the January 1974 decision. 20 C.F.R.
§§404.957(b); 404.957(a). With regard to the period covered by plaintiff's
second application, the examiner determined on the basis of the evidence
presented at the hearing that plaintiff has not become disabled since
January 14, 1974. The Appeals Council affirmed the examiner's findings.

I.

The district court reversed the Secretary without distinguishing between
the periods covered by plaintiff's first and second applications. By
upholding plaintiff's claim for benefits dating from the alleged onset of
disability in March 1972, the court in effect reopened the Secretary's
previous final decision on plaintiff's first application covering the
period March 14, 1972, to January 14, 1974.

A decision by the Secretary which has become final in res judicata as to
subsequent applications involving the same facts and issues existing at
the time of the first decision. Stuckey v. Weinberger, 488 F.2d
904, 911- 12 (9th Cir. 1973; Adkins v. Califano, 430 F. Supp. 448,
449-50 (S.D. W.Va. 1977); Gray v. Mathews, 421 F.Supp. 364, 366
(N.D. Cal. 1976). Under 20 C.F.R. §404.937(a) the Secretary may refuse to
reopen a prior determination and may dismiss a claim on the basis of res
judicata. When the Secretary dismisses a claim on the basis of
§404.937(a), his decision is not reviewable by the district court.
Califano v. Sanders, 430 U.S. 99, 107-109
(1977).[2]See also Teague v.
Califano, 560 F.2d 615, 618 (4th Cir. 1977);

[T]he Supreme Court held in Sanders, supra, that judicial review
of applications for disability insurance benefits is authorized solely by
§205(g) of the Act, and that this Section does not permit judicial
review of agency decisions refusing to reopen a claim proceeding.
(Emphasis added.)

We therefore hold that the district court erred in awarding benefits for
the period covered by plaintiff's first application.

II.

The sole remaining question on appeal is whether the Secretary's finding
that plaintiff has not become disabled since January 14, 1974, is
supported by substantial evidence in the administrative record as a
whole.[3]

Mr. Janka was born on April 13, 1927, and has a seventh grade education.
He worked for nineteen years as a ham boner in a meat packing plant until
March 14, 1972. He had previous employment as an arc welder and a fire
fighter.

Plaintiff testified that he experiences shortness of breath and pain from
exertion, that he no longer performs activities such as fishing and
hunting and no longer drives a car. However, he did drive a car until
March 1976, four years after the date he alleges he became disabled. When
referred for vocational rehabilitation, plaintiff declined to go. He also
refused to permit the psychiatric evaluation requested by the hearing
examiner.

Plaintiff's primary complaint is an obstructive lung condition. On the
question of the severity of this disease, there is a conflict in the
medical evidence.

Dr. James E. Jenson, who has treated plaintiff since 1969, reported on
April 3, 1975, that plaintiff has a "severe obstructive lung disease with
moderate hyperinflation, mild restrictive lung disease, moderate hypoxemia
with normal ventilation at rest." Concerning the severity of plaintiff's
lung disease, Dr. Jenson stated that "the patient may be at respiratory
limit and near cardiac limit with mild to moderate * * * exertion.
Significant progressive decrease in pulmonary function. Permanent[ly]
disabled." In June 1975 Dr. Jenson reported "no significant change in
[Janka's] pulmonary and heart condition since last report of March 3,
1975."

On the other hand, the attending physician at the cardiopulmonary
laboratory of Mt. Sinai Hospital interpreted plaintiff's pulmonary
function tests as follows: On January 30, 1975, he found "[m]ild to
moderate irreversible obstructive lung disease. No evidence of any
significant restrictive lung disease. Moderate hypoxemia * * * Acids/Base
data is within normal physiological range." On February 4, 1975, he
characterized the obstructive lung disease as "severe" and noted
"[s]ignificant decease in pulmonary function since test of 30 Jan. 75."
However, on February 6, 1975, he described the obstructive lung condition
as "mild" and noted "[s]ignificant improvement since complete Pulmonary
Function Testing of 4 Feb. 75."

Dr. Paul Hamann's statement of February 4, 1975, recounts plaintiff's
complaints of pain and shortness of breath. However, his examination
revealed that "the heart is normal. Examination of the lungs reveal normal
breath sounds and no rales, rhonchi, or wheezes. The full expiratory
movement seems abbreviated." On February 12, 1975, he reported that
plaintiff "underwent pulmonary function study evaluation. Initial
functions revealed severe obstructive lung disease which was markedly
decreased from a previous test done *** on 1-30-75. *** [F]ollow up
pulmonary functions revealed an improvement to near normal in his
pulmonary functions."

The results of the pulmonary function studies were submitted to Dr.
William Trow, a medical
advisor[4] who explained their
significance in lay terminology at the hearing examiner's request. He
characterized plaintiff's impairment as "mild to moderate obstructive
pulmonary impairment with 2ø restriction, and with mild hypoxemia. ***
Patient has an obstructive pulmonary impairment with secondary restrictive
impairment. *** Diffusion impairment is mild. *** Interpretation would
have to be made on blood gas and diffusion studies. I believe that the
patient could do 'light' work. He could stand, bend, walk, stoop, squat,
lift, climb stairs, use public transportation or drive a vehicle as well
as the average person who can do 'light' work. As regards environment, he
should avoid smoke, noxious fumes, and dusty surroundings."

Conflicts in the evidence are to be resolved by the Secretary, not the
courts. Laffoon v. Califano, 558 F.2d 253, 254 (5th Cir. 1977);
Hassler v. Weinberger, 502 F.2d 172, 177 (7th Cir. 1974);
Russell v. Secretary of Health, Education and Welfare, 402 F.Supp.
613, 620 (E.D. Mo. 1975), aff'd, 540 F.2d 353, 356 (8th Cir. 1976).
Moreover, medical opinions on the ultimate issue of disability are not
binding on the Secretary. While the fact that plaintiff suffers from a
painful, obstructive lung disease is not in dispute, the ultimate question
of whether this condition is so severe as to be disabling is for the
Secretary to determine. The examiner concluded that plaintiff "is
experiencing mild to moderate obstructive and restrictive lung disease
with some diffusion impairment, but that from a pulmonary standpoint [he]
has the residual functional capacity to engage in 'light' work activity on
a sustained basis."

Concerning the numbness described by plaintiff, Dr. Jenson found in June
1975 that "he is not feeling numbness in his hands, there is no
neurological deficit event." Examinations by Dr. Lowell H. Baker, a
neurologist, on February 3, 1975, revealed that "[m]otor examination is
intact with no weakness in the upper or lower extremities, especially
distally. No atrophy or abnormal movements are noted. Sensory
examination-deep sensation to toe position or vibratory position is
normal. The patient does seem to have a decrease in touch and painful
stimuli about 4 inches about the wrists and knees bilaterally.
Coordination on finger to nose and heel to knee testing is normal. Romberg
exam and gait are intact." There is no medical evidence in the record
which would suggest that plaintiff's numbness is severe or that it has
impaired his ability to function.

The record also contains a one-sentence report by Dr. H.E. Richardson
that plaintiff has Alpha 1 Trypsin Deficiency, apparently a blood
disorder, and that as a result he is totally disabled. However, no
clinical or laboratory findings were offered in support of his finding and
the basis for the diagnosis is not revealed.

Phillip B. Haber, a vocational expert, studied the medical reports, some
of which include plaintiff's subjective
complaints,[5] and listened to
plaintiff's testimony at the hearing. On the basis of this evidence, he
concluded that plaintiff could not perform any of the jobs he has
previously held. However, he also concluded that Mr. Janka had the
capacity and skills to perform light work in a clean environment, such as
food service assistant, machine dishwasher or bus boy at a hospital, or a
clerk in a private mailroom.

The examiner was entitled to consider the testimony of the vocational
witness even though the witness had not interviewed plaintiff and based
his conclusions on the records and the testimony presented at the hearing.
See Kylle v. Cohen, 449 F.2d 489, 491-92 (4th Cir. 1971). The
Secretary is not required to find that a specific job opening is available
to a claimant. Timmerman v. Weinberger, 510 F.2d 439, 442-43 (8th
Cir. 1975). 42 U.S.C. §423(d)(2)(A) precludes a finding of disability if
the claimant can engage in substantial work which exists in the national
economy, "regardless of whether such work exists in the immediate area
in which believes, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work." (Emphasis added.)

We hold that the Secretary's findings are supported by substantial
evidence in the record as a whole, and that the district court erred in
reversing the Secretary's decision. We therefore reverse the judgment of
the district court and remand with directions to the district court
to enter judgment affirming the decision of the Secretary of Health,
Education and Welfare.

[1]The Honorable Miles W. Lord,
United States District Judge for the District of Minnesota.

[2]Respondent contends that * *
* the Social Security Act itself, specifically §205(g), should be
construed to authorize judicial review of a final decision of the
Secretary not to reopen a claim of benefits. All Courts of Appeals that
have considered this contention have rejected it. We also agree that
§205(g) cannot be read to authorize judicial review of alleged abuses of
agency discretion in refusing to reopen claims for social security
benefits.

* * * *

This is not one of those rare instances where the Secretary's denial of a
petition to reopen is challenged on constitutional grounds. Respondent
seeks only an additional opportunity to establish that he satisfies the
Social Security Act's eligibility standards for disability benefits.
Therefore, §205(g) does not afford subject-matter jurisdiction in this
case. Califano v. Sanders, 430 U.S. 99, 107-109 (1977).

[3]The court is to be guided by
the following rules in reviewing the Secretary' conclusions: (a) the
claimant has the burden of establishing his claim; (b) the Act is remedial
and is to be construed liberally; (c) the Secretary's findings and the
reasonable inferences drawn from them are conclusive if they are supported
by substantial evidence; (d) substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion; (e) it must be based on the record as a whole; (f) the
determination of the presence of substantial evidence is to be made on a
case-to-case basis; (g) where the evidence is conflicting it is for the
Appeals Council on behalf of the Secretary to resolve those conflicts; (h)
the statutory definition of disability imposes a three-fold requirement
(1) that there be a medically determinable physical or mental impairment
which can be expected to [result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months], (2)
that there be an inability to engage in any substantial gainful activity;
and (3) that the inability be by reason of the impairment; (i) such
substantial gainful activity is that which is both substantial and gainful
and within the claimant's capability, realistically judged by his
education, training, and experience; (j) the emphasis is on the particular
claimant's capabilities and on what is reasonably possible, not on what is
conceivable; and (k) it is not the duty or the burden of the Secretary to
find a specific employer and job for the claimant but, instead, some
effort and some ingenuity within the range of the claimant's capacity
remains for him to exercise.

Brinker v. Weinberger, 552 F.2d 13, 17 (8th Cir. 1975).

[4]The use in social security
disability determinations of a medical advisor, i.e., "an expert who does
not examine the claimant but who hears and reviews the medical evidence
and who may offer an opinion," was expressly approved in Richardson v.
Perales, 402 U.S. 389, 396, 418 (1971). The opinion of such an
advisor, even if different for that of an examining physician, may
constitute evidence to support a finding of nondisability. Gaultney v.
Weinberger, 505 F.2d 943, 945 (5th Cir. 1974).

[5]Plaintiff contends that the
vocational expert was directed to disregard plaintiff's subjective
complaints. However, examination of the record reveals no such
instruction. Mr. Haber was told to disregard "any subjective statements
of doctors as to whether the claimant is or is not disabled." As
indicated previously, the ultimate issue of disability must be determined
by the examiner.